State Of A.P vs Bajjoori Kanthaiah & Anr

State of Andhra Pradesh ...Appellant

Versus

Bajjoori Kanthaiah and Anr. ...Respondents

With Crl. A. No............../2008 @ SLP(Crl.) No.2627/2006 Crl. A. No............../2008 @ SLP(Crl.) No.2631/2006 Crl. A. No............../2008 @ SLP(Crl.) No.3372/2006 Crl. A. No............../2008 @ SLP(Crl.) No.3371/2006 Crl. A. No............../2008 @ SLP(Crl.) No.2892/2006 Crl. A. No............./2008 @ SLP(Crl.) No.3639/2006 Crl. A. No............/2008 @ SLP(Crl.) No.5841/2008

JUDGMENT

1 Dr. ARIJIT PASAYAT, J.

1. Leave granted in all these cases.

2. By the impugned judgments the High Court of Andhra

Pradesh has quashed the FIR filed by Prohibition and Excise officers

alleging commission of offences punishable under Andhra Pradesh

Excise Act, 1968 (in short the 'Act') and the Andhra Pradesh Prohibition

Act, 1995 (in short the 'Prohibition Act'). In all the cases the allegation

was that the concerned accused was either transporting or storing black

jaggery/molasses for the purpose of manufacturing illicit distilled liquor

or was an abettor so far as the offence of manufacturing illicit liquor is

concerned. On being moved by application under Section 482 of the

Code of Criminal Procedure, 1973 (in short the `Code') by the concerned

accused for quashing the FIR, the High Court accepted the plea holding

that there was no material to show that the seized articles were intended

to be used for manufacturing of illicit distilled liquor. Accordingly, the

FIR in each case was quashed.

3. In support of the appeals, learned counsel appearing for the

State of Andhra Pradesh submitted that the High Court's approach is

clearly erroneous. These are not cases where there was total absence of

2 material to show the commission of a crime. Whether there was adequate

material already in existence or which could have been collected during

investigation and their relevance is essentially a matter of trial. The High

Court was not, therefore, justified in quashing the FIR. The exercise of

power under Section 482 of the Code is clearly indefensible.

4. There is no appearance on behalf of the respondents in spite of

service of notice.

5. Exercise of power under Section 482 of the Code in a case of

this nature is the exception and not the rule. The Section does not confer

any new powers on the High Court. It only saves the inherent power

which the Court possessed before the enactment of the Code. It envisages

three circumstances under which the inherent jurisdiction may be

exercised, namely, (i) to give effect to an order under the Code, (ii) to

prevent abuse of the process of court, and (iii) to otherwise secure the

ends of justice. It is neither possible nor desirable to lay down any

inflexible rule which would govern the exercise of inherent jurisdiction.

No legislative enactment dealing with procedure can provide for all cases

that may possibly arise. Courts, therefore, have inherent powers apart

from express provisions of law which are necessary for proper discharge

3 of functions and duties imposed upon them by law. That is the doctrine

which finds expression in the Section which merely recognizes and

preserves inherent powers of the High Courts. All courts, whether civil or

criminal possess, in the absence of any express provision, as inherent in

their constitution, all such powers as are necessary to do the right and to

undo a wrong in course of administration of justice on the principle

quando lex aliquid alique concedit, conceditur et id sine quo res ipsa esse

non potest (when the law gives a person anything it gives him that

without which it cannot exist). While exercising powers under the

Section, the Court does not function as a court of appeal or revision.

Inherent jurisdiction under the Section though wide has to be exercised

sparingly, carefully and with caution and only when such exercise is

justified by the tests specifically laid down in the Section itself. It is to be

exercised ex debito justitiae to do real and substantial justice for the

administration of which alone courts exist. Authority of the court exists

for advancement of justice and if any attempt is made to abuse that

authority so as to produce injustice, the court has power to prevent such

abuse. It would be an abuse of process of the court to allow any action

which would result in injustice and prevent promotion of justice. In

exercises of the powers court would be justified to quash any proceeding

if it finds that initiation or continuance of it amounts to abuse of the

4 process of court or quashing of these proceedings would otherwise serve

the ends of justice. When no offence is disclosed by the complaint, the

court may examine the question of fact. When a complaint is sought to

be quashed, it is permissible to look into the materials to assess what the

complainant has alleged and whether any offence is made out even if the

allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this

Court summarized some categories of cases where inherent power can

and should be exercised to quash the proceedings:

(i) where it manifestly appears that there is a legal bar against the

institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or

complaint taken at its face value and accepted in their entirety do not

constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal

evidence adduced or the evidence adduced clearly or manifestly fails to

prove the charge.

5

7. In dealing with the last category, it is important to bear in

mind the distinction between a case where there is no legal evidence or

where there is evidence which is clearly inconsistent with the accusations

made, and a case where there is legal evidence which, on appreciation,

may or may not support the accusations. When exercising jurisdiction

under Section 482 of the Code, the High Court would not ordinarily

embark upon an enquiry whether the evidence in question is reliable or

not or whether on a reasonable appreciation of it accusation would not be

sustained. That is the function of the trial Judge. Judicial process no

doubt should not be an instrument of oppression, or, needless

harassment. Court should be circumspect and judicious in exercising

discretion and should take all relevant facts and circumstances into

consideration before issuing process, lest it would be an instrument in the

hands of a private complainant to unleash vendetta to harass any person

needlessly. At the same time the Section is not an instrument handed

over to an accused to short-circuit a prosecution and bring about its

sudden death. The scope of exercise of power under Section 482 of the

Code and the categories of cases where the High Court may exercise its

power under it relating to cognizable offences to prevent abuse of process

of any court or otherwise to secure the ends of justice were set out in

6 some detail by this Court in State of Haryana v. Bhajan Lal (1992 Supp

(1) SCC 335). A note of caution was, however, added that the power

should be exercised sparingly and that too in rarest of rare cases. The

illustrative categories indicated by this Court are as follows:

"(1) Where the allegations made in the first information report or

the complaint, even if they are taken at their face value and accepted in

their entirety do not prima facie constitute any offence or make out a case

against the accused.

(2) Where the allegations in the first information report and other

materials, if any, accompanying the FIR do not disclose a cognizable

offence, justifying an investigation by police officers under Section 156(1)

of the Code except under an order of a Magistrate within the purview of

Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the F.I.R. or

complaint and the evidence collected in support of the same do not

disclose the commission of any offence and make out a case against the

accused.

7 (4) Where the allegations in the F.I.R. do not constitute a cognizable

offence but constitute only a non-cognizable offence, no investigation is

permitted by a Police Officer without an order of a Magistrate as

contemplated under S. 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd

and inherently improbable on the basis of which no prudent person can

ever reach a just conclusion that there is sufficient ground for proceeding

against the accused.

(6)Where there is an express legal bar engrafted in any of the provisions

of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the concerned Act,

providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with an ulterior

motive for wreaking vengeance on the accused and with a view to spite

him due to private and personal grudge."

8

8. As noted above, the powers possessed by the High Court

under Section 482 of the Code are very wide and the very plenitude of the

power requires great caution in its exercise. Court must be careful to see

that its decision in exercise of this power is based on sound principles.

The inherent power should not be exercised to stifle a legitimate

prosecution. High Court being the highest Court of a State should

normally refrain from giving a prima facie decision in a case where the

entire facts are incomplete and hazy, more so when the evidence has not

been collected and produced before the Court and the issues involved,

whether factual or legal, are of magnitude and cannot be seen in their true

perspective without sufficient material. Of course, no hard and fast rule

can be laid down in regard to cases in which the High Court will exercise

its extraordinary jurisdiction of quashing the proceeding at any stage.

(See: The Janata Dal etc. v. H.S. Chowdhary and others, etc. (AIR 1993

SC 892), Dr. Raghubir Saran v. State of Bihar and another (AIR 1964 SC

1)). It would not be proper for the High Court to analyse the case of the

complainant in the light of all probabilities in order to determine whether

a conviction would be sustainable and on such premises, arrive at a

conclusion that the proceedings are to be quashed. It would be erroneous

9 to assess the material before it and conclude that the complaint cannot be

proceeded with. In proceeding instituted on complaint, exercise of the

inherent powers to quash the proceedings is called for only in a case

where the complaint does not disclose any offence or is frivolous,

vexatious or oppressive. If the allegations set out in the complaint do not

constitute the offence of which cognizance has been taken by the

Magistrate, it is open to the High Court to quash the same in exercise of

the inherent powers under Section 482 of the Code. It is not, however,

necessary that there should be meticulous analysis of the case before the

trial to find out whether the case would end in conviction or acquittal. The

complaint/F.I.R. has to be read as a whole. If it appears that on

consideration of the allegations in the light of the statement made on oath

of the complainant or disclosed in the F.I.R. that the ingredients of the

offence or offences are disclosed and there is no material to show that the

complaint/F.I.R. is mala fide, frivolous or vexatious, in that event there

would be no justification for interference by the High Court. When an

information is lodged at the police station and an offence is registered,

then the mala fides of the informant would be of secondary importance. It

is the material collected during the investigation and evidence led in Court

which decides the fate of the accused person. The allegations of mala

fides against the informant are of no consequence and cannot by itself be

10 the basis for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R.

Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and

another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC 222),

Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill and

another (1995 (6) SCC 194), State of Kerala and others v. O.C. Kuttan

and others (1999 (2) SCC 651), State of U.P. v. O. P. Sharma (1996 (7)

SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar Bhada (1997 (2)

SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) and another

(1999 (8) SCC 728), Rajesh Bajaj v. State NCT of Delhi and others AIR

1999 SC 1216), State of Karnataka v. M. Devendrappa and another

(2002 (3) SCC 89).

9. In all these cases there was either statements of witnesses or

seizure of black jaggery and olum materials being used for manufacturing

illicit distilled liquor which factors cannot be said to be without

relevance. Whether the material already in existence or to be collected

during investigation would be sufficient for holding the concerned

accused persons guilty has to be considered at the time of trial. At the

time of framing the charge it can be decided whether prima facie case

has been made out showing commission of an offence and involvement of

11 the charged persons. At that stage also evidence cannot be gone into

meticulously. It is immaterial whether the case is based on direct or

circumstantial evidence. Charge can be framed, if there are materials

showing possibility about the commission of the crime as against

certainty. That being so, the interference at the threshold with the F.I.R.

is to be in very exceptional circumstances as held in R.P. Kapoor and

Bhajan Lal cases (supra).

10. Ultimately, the acceptability of the materials to fasten

culpability on the accused persons is a matter of trial. These are not the

cases where it can be said that the FIR did not disclose commission of an

offence. Therefore, the High Court was not justified in quashing the FIR

in the concerned cases.

11. Keeping in view the principles of law as enunciated above, the

action of the High Court in quashing the FIR in each case cannot be

maintained and are set aside.

12. Learned counsel for the State submitted that there shall be

early investigation in the matter and submission of Report under Section

12 173 of the Code shall be done without delay and in any event, not later

than the end of February, 2009. We make it clear that we have not

expressed any opinion on the merits of the case.

13. All the appeals are allowed, as indicated above.

...........................................J. (Dr. ARIJIT PASAYAT)

............................................J.

(Dr. MUKUNDAKAM SHARMA)

New Delhi:

October 20, 2008

13